Separate Opinions VITUG, J., concurring:
The legal profession, profession, despite despite all the unrestrained unrestrained calumny calumny hurled against it, is still the noblest of professions. It exists upon the thesis that, in an orderly society that is opposed to all forms of anarchy, it so occupies, as it should, an exalted position in the proper dispensation of justice. In time, principles have evolved that would help ensure its eective ministration. The protection of condentiality of the lawyer lawyer client relationship is one, and it has since been an accepted rmament in the profession. It allows the lawyer and the client to institutionali!e a uni"ue relationship based on full trust and condence essential in a justice system that wor#s on on the basis of of substantive and and procedural procedural due process. To To be sure, the rule is not without its pitfalls, and demands against it may be strong, but these problems are, in the ultimate analysis, no more than mere tests of vigor that have made and will ma#e that rule endure. I see in the case before us, given the attendant circumstances already detailed in the ponencia, a situation of the $epub $epublic lic attempting to establish a case not on what it perceives to be the strength of its own evidence but on what it could elicit from a counsel against his client. I nd it unreasonable for the %andiganbayan to compel petitioners to breach the trust reposed on them and succumb to a thinly disguised threat of incrimination. &ccordingly, I j oin my other colleague who vote for the '$&(T of the &ccordingly, petition.
DAVIDE, JR., J.: dissenting
The impressive impressive presentation presentation of the case case in the ponencia of )r. *ustice +apunan ma#es dicult the espousal of a dissenting view. (evertheless, I do not hesitate to express that view because I strongly feel that this -ourt must conne itself to the #ey issue in this special civil action for certiorari, viz ., ., whether or not the %andiganbayan acted with grave abuse of discretion in not excluding the defendants, the petitioners herein, from the Third &mended -omplaint in -ivil -ase (o. //. That issue, unfortunately, has been simply buried under the avalanche of authorities upholding the sanctity of lawyer lawyerclient client relationship which appears to me to be prematurely invo#ed.
0rom the undisputed facts disclosed by the pleadings and summari!ed in the ponencia, I cannot nd my way clear to a conclusion that the %andiganbayan %andiganbaya n committed grave abuse of discretion in not acting favorably on the petitioners1 prayer in their -omment to the 2-''1s )otion to &dmit Third &mended -omplaint. The prerogative prerogative to determine determine who who shall be made made defendants in a civil case is initially vested in the plainti, or the 2-'' in this case. The control of the -ourt comes in only when the issue of 3interest3 45 6, $ule /, $ules of -ourt7 as, e.g., whether an indispensable party has not been joined, or whether there is a misjoinder of parties 45 8, 9, and , Id.7, is raised. In the case below, the 2-'' decided to drop or exclude from the complaint original codefendant $aul $oco because he had allegedly complied with the condition prescribed by the 2-'', viz ., ., underta#e that he will reveal the identity of the principals for whom he acted as nominee;stoc#holder nominee;sto c#holder in the companies involved in 2-'' -ase (o. //. In short, there was an agreement or compromise settlement between the 2-'' and $oco. &ccordingly, the 2-'' submitted a Third &mended -omplaint without $oco as a defendant. (o obstacle to such an agreement has been insinuated. If $oco1s revelation violated the condentiality of a lawyerclient relationship, relationship, he would be solely answerable therefor to his principals;clients and, probably, to this -ourt in an appropriate disciplinary action if warranted. There is at all no showing that -ivil -ase (o. // cannot further be proceeded upon or that any judgment therein cannot be binding without $oco remaining as a defendant. &ccordingly, the admission of the Third &mended -omplaint cannot be validly withheld by the %andiganbayan. &re the petitioners, who did not le a formal motion to be excluded but only made the re"uest to that eect as a rider to their -omment to the )otion to &dmit Third &mended -omplaint, entitled to be excluded from the Third &mended -omplaint such that denial thereof would constitute grave abuse of discretion on the %andiganbayan1s part< To me, the answer is clearly in the negative. The petitioners see# to be accorded accorded the same benet benet granted to or to be similarly treated as $oco $oco.. $eason and logic dictate that they cannot, unless they too would ma#e themselves li#e $oco. =therwise stated, they must rst voluntarily adopt for themselves the factual milieu created by $oco and must bind themselves to perform certain obligations as $oco. $oco. It is precisely for this that in response to the petitioners1 comment on the aforementioned )otion to &dmit Third &mended -omplaint -omplaint the 2-'' manifested that it is willing to accord the petitioners the treatment it gave $oco provided they would do $ahrah>2age 1 of 13
what $oco had done, that is, disclose the identity of their principals;clients and submit documents substantiating their claimed lawyerclient relationship with the said principals;clients, as well as copies of deeds of assignments the petitioners executed in favor of their principals;clients. The petitioners did not do so because they believed that compliance thereof would breach the sanctity of their duciary duty in a lawyerclient relationship. It, indeed, appears that $oco has complied with his obligation as a consideration for his exclusion from the Third &mended -omplaint. The %andiganbayan found that ?. The 2-'' is satised that defendant $oco has demonstrated his agency and that $oco has apparently identied his principal, which revelation could show the lac# of action against him. This in turn has allowed the 2-'' to exercise its power both under the rules of agency and under %ection ? of @.=. (o. ABA in relation to the %upreme -ourt1s ruling in Republic v . Sandiganbayan 4A8/ %-$& 867. &s a matter of fact, the 2-'' presented evidence to substantiate $oco1s compliance. The ponencia itself so stated, thus: . . . respondent 2-'' presented evidence to substantiate compliance by private respondent $oco of the conditions precedent to warrant the latter1s exclusion as partydefendant in 2-'' -ase (o. //, to wit: 4a7 Cetter to respondent 2-'' of the counsel of respondent $oco dated )ay 6B, A9 reiterating a previous re"uest for reinvestigation by the 2-'' in 2-'' -ase (o. //D 4b7 &davit dated )arch 9, A9 executed by private respondent $oco as &ttachment to the letter aforestated in 4a7D and 4c7 Cetter of $oco, Eunag, and +apunan Caw =ces dated %eptember 6A, A99 to the respondent in behalf of private respondent $oco originally re"uesting the reinvestigation and;or reexamination of evidence by the 2-'' it -omplaint in 2-'' -ase (o. //. 4 Id., ?F7. These are the pieces of evidence upon which the %andiganbayan founded its conclusion that the 2-'' was satised with $oco1s compliance. The petitioners have not assailed such nding as arbitrary. The ponencia's observation then that $oco did not refute the petitioners1 contention that he did not comply with his obligation to disclose the identity of his principals is entirely irrelevant.
treatment, much less compel the 2-'' to drop them as defendants, for nothing whatsoever. They have no right to ma#e such a demand for until they shall have complied with the conditions imposed for their exclusion, they cannot be excluded except by way of a motion to dismiss based on the grounds allowed by law 4e.g., those enumerated in 5 A, $ule AF, $ules of -ourt7. The rule of condentiality under the lawyer-client relationship is not a cause to exclude a party. It is erely aground for dis!ualication of a witness 45 6B, $ule A/, $ules of -ourt7 and ay only be invo"ed at the appropriate tie , i.e., when a lawyer is under compulsion to answer as witness, as when, having ta#en the witness stand, he is "uestioned as to such condential communicator or advice, or is being otherwise judicially coerced to produce, through subpoena duces tecu or otherwise, letters or other documents containing the same privileged matter. Eut none of the lawyers in this case is being re!uired to testify about or otherwise reveal 3any GcondentialH communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment.3 hat they are being as#ed to do, in line with their claim that they had done the acts ascribed to them in pursuance of their professional relation to their clients, is to identify the latter to the 2-'' and the -ourtD but this, only if they so choose in order to be dropped from the complaint, such identication being the condition under which the 2-'' has expressed willingness to exclude them from the action. The revelation is entirely optional, discretionary, on their part. The attorneyclient privilege is not therefor applicable. Thus, the %andiganbayan did not commit any abuse of discretion when it denied the petitioners1 prayer for their exclusion as party defendants because they did not want to abide with any of the conditions set by the 2-''. There would have been abuse if the %andiganbayan granted the prayer because then it would have capriciously, whimsically, arbitrarily, and oppressively imposed its will on the 2-''. &gain, what the petitioners want is their exclusion from the Third &mended -omplaint or the dismissal of the case insofar as they are concerned because either they are invested with immunity under the principle of condentiality in a lawyerclient relationship, or the claims against them in -ivil -ase (o. // are barred by such principle. @ven if we have to accommodate this issue, I still submit that the lawyerclient privilege provides the petitioners no refuge. They are sued as principal defendants in -ivil -ase (o. //, a case of the recovery of alleged illgotten wealth. -onspiracy is imputed to the petitioners therein. In short, they are, allegedly, conspirators in the commission of the acts complained of for being nominees of certain parties.
In view of their adamantine position, the petitioners did not, therefore, allow themselves to be li#e $oco. They cannot claim the same $ahrah>2age 2 of 13
Their inclusion as defendants in justied under 5 A?, &rticle JI of the -onstitution K which provides that the right of the %tate to recover properties unlawfully ac"uired by public ocials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel K and @.=. (o. A of 69 0ebruary A9F, @.=. (o. 6 of A6 )arch A9F, @.=. (o. AB of 8 )ay A9F, and the $ules and $egulations of the 2-''. 0urthermore, 5 6, $ule AA of the $ules of -ourt re"uires that the complaint or information should be 3against all persons who appear to be responsible for the oense involved.3 Lypothetically admitting the allegations in the complaint in -ivil -ase (o. //, I nd myself unable to agree with the majority opinion that the petitioners are immune from suit or that they have to be excluded as defendants, or that they cannot be compelled to reveal or disclose the identity of their principals, all because of the sacred lawyerclient privilege. This privilege is well put in $ule A/ of the $ules of -ourt, to wit: 5 6B. #is!ualication by reason of privileged counication. K The following persons cannot testify as to matters learned in condence in the following cases:
charged. The cases cited by the majority evidently do not apply to them. Lence, I wish to repeat and underscore the fact that the lawyerclient privilege is not a shield f or the commission of a crime or against the prosecution of the lawyer therefor. I "uote, with emphases supplied, from 9A &) *M$ 6d, itnesses, 5 // to /?, pages /?F/?8: 5 //. @ect of unlawful purpose. The existence of an unlawful purpose prevents the attorneyclient privilege from attaching. The attorneyclient privilege does not generally exist where the representation is sought to further criinal or fraudulent conduct either past$ present$ or future. Thus, a condence received by an attorney in order to advance a criminal or fraudulent purpose is beyond the scope of the privilege. %bservation: The commonlaw rule that the privilege protecting condential communications between attorney and client is lost if the relation is abused by a client who see#s legal assistance to perpetrate a crime or fraud has been codied.
xxx xxx xxx 5 /B. &ttorney participation. 4b7 &n attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney1s secretary, stenographer, or cler# be examined, without the consent of the client and his employer, concerning any fact the #nowledge of which has been ac"uired in such capacity. The majority see#s to expand the scope of the 2hilippine rule on the lawyerclient privilege by copious citations of &merican jurisprudence which includes in the privilege the identity of the client under the exceptional situations narrated therein. 0rom the plethora of cases cited, two facts stand out in bold relief. 0irstly, the issue of privilege contested therein arose in grand jury proceedings on dierent %tates, which are preliminary proceedings before the ling of the case in court, and we are not even told what evidentiary rules apply in the said hearings. In the present case, the privilege is invo#ed in the court where it was already led and presently pends, and we have the foregoing specic rules above"uoted. %econdly, and more important, in the cases cited by the majority, the lawyers concerned were merely advocating the cause of their clients but were not indicted for the charges against their said clients. Lere, the counsel themselves are codefendants duly charged in court as coconspirators in the oenses
The attorneyclient privilege cannot be used to protect a client in the perpetration of a crime in concert with the attorney$ even where the attorney is not aware of his client's purpose . The reason for the rule is that it is not within the professional character of a lawyer to give advised on the coission of crie . 2rofessional responsibility does not countenance the use of the attorneyclient privilege as a subterfuge, and all conspiracies, either active or passive, which are calculated to hinder the administration of justice will vitiate the privilege. In some jurisdictions, however, this exception to the rule of privilege in conned to such intended acts in violation of the law as are mala in se, as distinguished from those which are merely mala prohibita. 5 /?. -ommunication in contemplation of crime. -ommunications between attorney and client having to do with the client1s contemplated criminal acts, or in aid or furtherance thereof, are not covered by the cloa# of privilege ordinarily existing in reference to communications between attorney and client. Eut, the mere charge of illegality, not supported by $ahrah>2age 3 of 13
evidence, will not defeat the privilegeD there must be at least pria facie evidence that the illegality has some foundation in fact. Mnderhill also states: There are many other cases to the same eect, for the rule is prostitution of the honorable relation of attorney and client will not be peritted under the guise of privilege$ and every counication ade to an attorney by a client for a criinal purpose is a conspiracy or attept at a conspiracy which is not only lawful to divulge$ but which the attorney under certain circustances ay be bound to disclose at once in the interest of &ustice. In accordance with this rule, where a forged will or other false instrument has come into possession of an attorney through the instrumentality of the accused, with the hope and expectation that the attorney would ta#e some action in reference thereto, and the attorney does act, in ignorance of the true character of the instrument, there is no privilege, inasmuch as full condence has been withheld. The attorney is then compelled to produce a forged writing against the client. The fact that the attorney is not cogni!ant of the criminal or wrongful purpose, or, #nowing it, attempts to dissuade his client, is immaterial. The attorney1s ignorance of his client1s intentions deprives the information of a professional character as full condence has been withheld. 4L.-. Mnderhill, & Treatise on the Caw of -riminal -ase @vidence, vol. 6, 0ifth ed. 4A?F7, %ec. //6, pp. 9/F9/8D emphasis mine7. A6? &)@$I-&( C& $@2=$T% &((=T&T@N, ?AF?A, summari!es the rationale of the rule excepting communications with respect to contemplated criminal or fraudulent acts, thus: c. Rationale of rule excepting counications with respect to conteplated criinal or fraudulent act . Oarious reasons have been announced as being the foundation for the holdings that communications with respect to contemplated criminal or fraudulent acts are not privileged. The reason perhaps most fre"uently advanced is that in such cases there is no professional employment, properly spea#ing. Standard . Ins. (o v . Sithhart 4AA7 A9/ +y F8, 6AA %. BBA, ? &C$ 86D (uings v . (o. 4A687 66A +y /A, 69 % B/D Strong v . )bner 4A/87 6F9 +y ?6, A? %46d7 ?D *eople v . +an )lstine 4A99?7 ?8 )ich F, 6/ ( ?BD ,ail (o. v . ngland 4A967 ? )o &pp //9D (arney v . /nited R. (o. 4A67 6? )o &pp B?, 66F % /9D 0atthews
v . ,oagland 4A9A7 B9 (* @" B??, 6A & A?BD (ovency v . Tannahill 4A9BA7 A Lill 4(P7 //, /8 &) Nec 698D *eople ex rel. +ogelstein v . 1arden 4A/B7 A? )isc 8AB, 68 (P% /F6 4armed without opinion in 4A/B7 6B6 &pp Niv FAA, 68A (P% A?7D Russell v . 2ac"son 4A9?A7 Lare /98, F9 @ng $eprint ??9D(harlton v . (oobes 4A9F/7 B 'i /86, FF @ng $eprint 8?AD Reg. v. (ox 4A99B7 C$ AB QE Niv 4@ng7 A?/ K --$D $e 2ostlethwaite 4A9987 C$ /? -h Niv 4@ng7 866.
In Reg. v . (ox 4A99B7 C$ AB QE Niv 4@ng7 A?/ K --$, the court said: 3In order that the rule may apply, there ust be both professional condence and professional eployent$ but if the client has a criinal ob&ect in view in his counications with his solicitor one of these eleents ust necessarily be absent . The client must either conspire with his solicitor or deceive him. If his criinal ob&ect is avowed$ the client does not consult his adviser professionally , because it cannot be the solicitor1s business to further any criminal object. If the client does not avow his ob&ect$ he reposes no condence , for the state of facts which is the foundation of the supposed condence does not exist. The solicitor1s advice is obtained by a fraud.3 %o, in Standard . Ins. (o. v . Sithhart 4AA7 A9/ +y F8, 6AA % BBA, ? &C$ 86, the court said: 3The reason of the principle which holds such communications not to be privileged is that it is not within the professional character of a lawyer to give advice upon such subjects, and that it is no part of the profession of an attorney or counselor at law to be advising persons as to how they may commit crimes or frauds, or how they may escape the conse"uences of contemplated crimes and frauds. If the crime or fraud has already been committed and nished, a client may advise with an attorney in regard to it, and communicate with him freely, and the communications cannot be divulged as evidence without the consent of the client, because it is a part of the business and duty of those engaged in the practice of the profession of law, when employed and relied upon for that purpose, to give advice to those who have made infractions of the lawsD and, to enable the attorney to properly advise and to properly represent the client in court or when prosecutions are threatened, it is conducive to the administration of justice that the client shall be free to communicate to his attorney all the facts within his #nowledge, and that he may be assured that a communication made by him shall not be used to his prejudice.3 The protection which the law aords to communications between attorney and client has reference to those which are legitimately and properly within the scope of a lawful employment, and does not extend to communications made in contemplation of a crime, $ahrah>2age 4 of 13
or perpetration of a fraud. Strong v . )bner 4A/87 /F9 +y ?6, A? % 46d7 ?. The court in *eople v . +an )lstine 4A99?7 ?8 )ich F, 6/ ( ?B, in holding not privileged communications to an attorney having for their object the communication of a crime, said: 3 They then parta"e of the nature of a conspiracy$ or attepted conspiracy$ and it is not only lawful to divulge such counications$ but under certain circustances it ight becoe the duty of the attorney to do so . The interests of public &ustice re!uire that no such shield fro erited exposure shall be interposed to protect a person who ta"es counsel how he can safely coit a crie. The relation of attorney and client cannot exist for the purpose of counsel in concocting cries .3 &nd in (oveney v . Tannahill 4A9BA7 A Lill 4(P7 //, /8 &m Nec 698, the court was of the opinion that there could be no such relation as that of attorney and client, either in the commission of a crime, or in the doing of a wrong by force or fraud to an individual, the privileged relation of attorney and client existing only for lawful and honest purposes. If the client consults the attorney at law with reference to the perpetration of a crime, and they cooperate in eecting it, there is no privilege, inasmuch as it is no part of the lawyer1s duty to aid in crime K he ceases to be counsel and becomes a criminal. 0atthews v . ,oagland 4A9A7 B9 (* @" B??, 6A & A?B. The court cannot permit it to be said that the contriving of a fraud forms part of the professional business of an attorney or solicitor. (harlton v . (oobes 4A9F/7 B 'i /86, FF @ng $eprint 8?A. If the client does not fran#ly and freely reveal his object and intention as well as facts, there is not professional condence, and therefore no privilege. 0atthews v . ,oagland 4(*7 supra. %ee to the same eect (arney v . /nited R. (o. 4A67 6? )o &pp B?, 66F % /9. There is no valid claim of privilege in regard to the production of documents passing between solicitor and client, when the transaction impeached is charged to be based upon fraud, that is the matter to be investigated, and it is thought better that the alleged privilege should suer than that honestly and fair dealing should appear to be violated with impunity. Sith v . ,unt 4AA7 A =nt C $ep //B.
In Tichborne v . 3ushington, shorthand (otes 4@ng7 p. ?6AA 4cited in $eg. v. -ox 4A99B7 C$ AB QE Niv 4@ng7 A86 K --$7, the chief justice said 3I believe the law is, and properly is, that if a party consults an attorney, and obtains advice for what afterwards turns out to be the commission of a crime or a fraud, that party so consulting the attorney has no privilege whatever to close the lips of the attorney from stating the truth. Indeed, if any such privilege should be contended for, or existing, it would wor# most grievous hardship on an attorney, who, after he had been consulted upon what subse"uently appeared to be a manifest crime and fraud, would have his lips closed, and might place him in a very serious position of being suspected to be a party to the fraud, and without his having an opportunity of exculpating himself . . . There is no privilege in the case which I have suggested of a party consulting another, a professional man, as to what may afterwards turn out to be a crime or fraud, and the best mode of accomplishing it.3 In 4arside v . %utra 4A9?F7 / *ur (% 4@ng7 /, although the "uestion of privilege as to communications between attorney and client was not involved, the "uestion directly involved being the competency of a cler# in a business establishment to testify as to certain information which he ac"uired while wor#ing in the establishment, the court strongly approved of a view as stated arguendo for plainti, in )nnesley v . )nglesea 4A8B/7 A8 Low %t Tr 4@ng7 A66, as follows: 3I shall claim leave to consider whether an attorney may be examined as to any matter which came to his #nowledge as an attorney. If he is employed as an attorney in any unlawful or wic#ed act, his duty to the public obliges him to disclose itD no private obligations can dispense with that universal one which lies on every member of society to discover every design which may be formed, contrary to the laws of society, to destroy the public welfare. 0or this reason, I apprehend that if a secret which is contrary to the public good$ such as a design to coit treason$ urder$ or per&ury$ coes to the "nowledge of an attorney$ even in a cause where he is concerned$ the obligation to the public ust dispense with the private obligation to the client .3 The court in 0c0annus v . State 4A9?97 6 Lead 4Tenn7 6A/, saidD 3It would be monstrous to hold that if counsel was as#ed and obtained in reference to a contemplated crime that the lips of the attorney would be sealed, when the facts might become important to the ends of justice in the prosecution of crime. In such a case the relation cannot be ta#en to exist. 2ublic policy would forbid it.3 &nd the court in 3anu v . *atterson 4A7 A?A Ill &pp /F, observed that this rule was not in contravention of sound public $ahrah>2age 5 of 13
policy, but on the contrary, tended to the maintenance of a higher standard of professional ethics by preventing the relation of attorney and client from operating as a cloa# for fraud. -ommunications of a client to an attorney are not privileged if they were a re"uest for advice as to how to commit a fraud, it being in such a case not only the attorney1s privilege, but his duty, to disclose the facts to the court. 1ill v . Tornabells (o. 4A87 / 2orto $ico 0ed $ep A6?. The court said: 3e say this notwithstanding the comments of opposing counsel as to the indelicacy of his position because of his being now on the opposite side of the issue that arose as a conse"uence of the communication he testies about, and is interested in the cause to the extent of a large contingent fee, as he confesses.3 The object of prohibiting the disclosure of condential communications is to protect the client, and not to ma#e the attorney an accomplice or permit him to aid in the commission of a crime. *eople vs.*etersen 4AA7 F &pp Niv AA9, (P% BA. The seal of personal condence can never be used to cover a transaction which is in itself a crime.*eople v . arer 4A7 AB (P 6?A, 98 (@ B?8. &s to disclosing the identity of a client, 9A &) *M$ 6d, itnesses, 5 BA and BAA, pages /FF/F9, states: 5 BA. (ame or identity of client. #isclosure of a client's identity i s necessary proof of the existence of the attorney-client relationship and is not privileged inforation. Thus, the attorneyclient privilege is inapplicable even though the information was communicated condentially to the attorney in his professional capacity and, in some cases, in spite of the fact that the attorney may have been sworn to secrecy, where an in"uiry is directed to an attorney as to the name or identity of his client. This general rule applies in criminal cases, as well as in civil actions. 1here an undisclosed client is a party to an action$ the opposing party has a right to "now with who he is contending or who the real party in interest is$ if not the noinal adversary .
5 BAA. Nisclosure of identity of client as breach of condentiality. The revelation of the identication of a client is not usually considered privileged, except where so much has been divulged with regard to to legal services rendered or the advice sought,
that to reveal the client1s name would be to disclose the whole relationship and condential communications. Lowever, even where the subject matter of the attorneyclient relationship has already been revealed, the client1s name has been deemed privileged. here disclosure of the identity of a client might harm the client by being used against him under circumstances where there are no countervailing factors , then the identity is protected by the attorneyclient privilege. In criminal proceedings, a client1s name may be privileged if information already obtained by the tribunal, combined with the client1s identity, might expose him to criminal prosecution for acts subse"uent to, and because of, which he had sought the advice of his attorney. <hough as a general rule, the identity of a defendant in a criminal prosecution is a matter of public record and, thus, not covered by the attorneyclient privilege, where the attorney has surrendered to the authorities physical evidence in his possession by way of the attorneyclient relationship, the state must prove the connection between the piece of physical evidence and the defendant without in any way relying on the testimony of the client1s attorney who initially received the evidence and, thus, the attorney may not be called to the stand and as#ed to disclose the identity of the client. Lowever, an attorney cannot refuse to reveal the identity of a person who as#ed him to deliver stolen property to the police department, whether a bona de attorney client relationship exists between them, inasmuch as the transaction was not a legal service or done in the attorney1s professional capacity. #istinction: here an attorney was informed by a male client that his female ac"uaintance was possibly involved in GaH his andrun accident, the identity of the female did not come within scope of attorneyclient privilege although the identity of the male client was protected. 4emphases supplied7
I')=$@ explains why the identity of a client is not within the lawyer client privilege in this manner: 5 6/A/. Identity of client or purpose of suit . K The identity of the attorney1s client or the name of the real party in interest will seldom be a matter communicated in condence because the procedure of l itigation ordinarily presupposes a disclosure of these facts. 0urthermore, so far as a client may in fact desire secrecy and may be able to secure action without appearing as a $ahrah>2age 6 of 13
party to the proceedings, it would be improper to sanction such a wish. very litigant is in &ustice entitled to "now the identity of his opponents. ,e cannot be obliged to struggle in the dar" against un"nown forces. Le has by anticipation the right, in later proceedings, if desired, to enforce the legal responsibility of those who may have maliciously sued or prosecuted him or fraudulently evaded his claim. Le has as much right to as# the attorney 3ho fees your fee<3 as to as# the witness 4FF supra7. 3ho maintains you during this trial<3 upon the analogy of the principle already examined 4669 supra7, the privilege cannot be used to evade a client1s responsibility for the use of legal process. )nd if it is necessary for the purpose to a"e a plain exception to the rule of condence$ then it ust be ade. 4igmore on @vidence, vol. 9, 4AFA7, p. FD emphases supplied7. In AAB &C$, A/66, we also nd the following statement: A. 5ae or identity . &s is indicated in 69 $.-.C. p. ?F/, it appears that the rule ma#ing communications between attorney and client privileged from disclosure ordinarily does not apply where the in"uiry is conned to the fact of the attorney1s employment and the name of the person employing him, since the privilege presupposes the relationship of client and attorney, and therefore does not attach to its creation. &t the present stage of the proceedings below, the petitioners have not shown that they are so situated with respect to their principals as to bring them within any of the exceptions established by &merican jurisprudence. There will be full opportunity for them to establish that fact at the trial where the broader perspectives of the case shall have been presented and can be better appreciated by the court. The insistence for their exclusion from the case is understandable, but the reasons for the hasty resolution desired is naturally suspect. e do not even have to go beyond our shores for an authority that the lawyerclient privilege cannot be i nvo#ed to prevent the disclosure of a client1s identity where the lawyer and the client are conspirators in the commission of a crime or a fraud. Mnder our jurisdiction, lawyers are mandated not to counsel or abet activities aimed at deance of the law or at lessening condence in the legal system 4$ule A.6, -anon A, -ode of 2rofessional $esponsibility7 and to employ only fair and honest means to attain the lawful objectives of his client 4$ule A.A, -anon A, Id.7. &nd under the -anons of 2rofessional @thics, a lawyer must steadfastly bear in mind that his great trust is to be performed within and not without the bounds of the law 4-anon A?, Id.7, that he advances the honor of his profession and the best interest of his client
when he renders service or gives advice tending to impress upon the client and his underta#ing exact compliance with the strictest principles of moral law 4-anon /6, Id.7. These canons strip a lawyer of the lawyerclient privilege whenever he conspires with the client in the commission of a crime or a fraud. I then vote to N@(P, for want of merit, the instant petition. 5arvasa$ (.2. and Regalado$ 2.$ concur. PUO, J., dissenting:
This is an important petition for certiorari to annul the resolutions of the respondent Sandiganbayan denying petitioners1 motion to be excluded from the -omplaint for recovery of alleged illgotten wealth on the principal ground that as lawyers they cannot be ordered to reveal the identity of their client. 0irst, we fast forward the facts. The 2residential -ommission on 'ood 'overnment 42-''7 led -ivil -ase (o. // before the Sandiganbayan against @duardo ). -ojuangco, *r., for the recovery of alleged illgotten wealth. %ued as codefendants are the petitioners in the cases at bar K lawyers Teodoro $egala, @dgardo *. &ngara, &velino O. -ru!, *ose -oncepcion, $ogelio &. Oinluan, Oictor 2. Ca!atin, @duardo @scueta and 2araja Layudini. &lso included as a codefendant is lawyer $aul $oco, now a duly elected senator of the $epublic. &ll co defendants were then partners of the law rm, &ngara, &bello, -oncepcion, $egala and -ru! Caw =ces, better #nown as the &--$& Caw 0irm. The -omplaint against -ojuangco, *r., and the petitioners alleged, inter alia, viz : xxx xxx xxx The wrongs committed by defendants acting singly or collectively and in unlawful concert with one another, include the misappropriation and theft of public funds, plunder of the nation1s wealth, extortion, blac#mail, bribery, embe!!lement and other acts of corruption, betrayal of public trust and bra!en abuse of power as more fully described 4in the subse"uent paragraphs of the complaint7, all at the expense and to the grave and irreparable damage of 2lainti and the 0ilipino people. Nefendants @duardo -ojuangco, *r., @dgardo *. &ngara, *ose -. -oncepcion, Teodoro N. $egala, &velino O. -ru!, $egalio &. Oinluan, @duardo M. @scueta, 2araja '. Layudini and $aul %. $oco of &ngara, -oncepcion, -ru!, $egala, and &bello law oces 4&--$&7 plotted, devised, schemed, conspired and confederated $ahrah>2age ! of 13
with each other in setting up, through the use of the coconut levy funds, the nancial and corporate framewor# and structures that led to the establishment of M-2E, M(I-=), -=-=CI0@, -=-=)&$+, -I- and more than twenty other coconut levy funded corporations, including the ac"uisition of the %an )iguel -orporation shares and the institutionali!ation through presidential directives of the coconut monopoly. through insidious means and machinations, &--$&, using its whollyowned investment arm, &--$& Investments -orporation, became the holder of approximately fteen million shares representing roughly /./R of the total outstanding capital stoc# of M-2E as of /A )arch A98. This ran#s &--$& Investments -orporation number BB among the top A biggest stoc#holders of M-2E which has approximately A,B, shareholders. =n the other hand, corporate boo#s show the name @dgardo *. &ngara as holding approximately /,8BB shares as of 8 *une A9B. In their &nswer, petitioners alleged that the legal services oered and made available by their rm to its clients include: 4a7 organi!ing and ac"uiring business organi!ations, 4b7 acting as incorporators or stoc#holders thereof, and 4c7 delivering to clients the corresponding documents of their e"uity holdings 4i.e., certicates of stoc# endorsed in blan# or blan# deeds of trust or assignment7. They claimed that their activities were 3in furtherance of legitimate lawyering.3 In the course of the proceedings in the %andiganbayan, the 2-'' led a )otion to &dmit Third &mended -omplaint and the Third &mended -omplaint excluding lawyer $oco as party defendant. Cawyer $oco was excluded on the basis of his promise to reveal the identity of the principals for whom he acted as nominee;stoc#holder in the companies involved in the case. The %andiganbayan ordered petitioners to comment on the motion. In their -omment, petitioners demanded that they be extended the same privilege as their codefendant $oco. They prayed for their exclusion from the complaint. 2-'' agreed but set the following conditions: 4A7 disclosure of the identity of their clientD 467 submission of documents substantiating their lawyerclient relationshipD and 4/7 submission of the deeds of assignment petitioners executed in f avor of their client covering their respective shareholdings. The same conditions were imposed on lawyer $oco. 2etitioners refused to comply with the 2-'' conditions contending that the attorneyclient privilege gives them the right not to reveal the identity of their client. They also alleged that lawyer $oco was excluded though he did not in fact reveal the identity of his clients. =n )arch A9, A6, the %andiganbayan denied the exclusion of petitioners in -ase (o. //. It held:
xxx xxx xxx &--$& lawyers may ta#e the heroic stance of not revealing the identity of the client for whom they have acted, i.e., their principal, and that will be their choice. Eut until they do identify their clients, considerations of whether or not the privilege claimed by the &--$& lawyers exists cannot even begin to the debated. The &--$& lawyers cannot excuse themselves from the conse"uences of their acts until they have begun to establish the basis for recogni!ing the privilegeD the existence and identity of the client. This is what appears to be the cause for which they have been impleaded by the 2-'' as defendants herein. ?. The 2-'' is satised that defendant $oco has demonstrated his agency and that $oco has apparently identied his principal, which revelation could show the lac# of course against him. This in turn has allowed the 2-'' to exercise its power both under the rules of &gency and under %ection ? of @.=. (o. AB& in relation to the %upreme -ourt1s ruling in Republic v . Sandiganbayan 4A8/ %-$& 867. The 2-'' has apparently oered to the &--$& lawyers the same conditions availed of by $ocoD full disclosure in exchange for exclusion from these proceedings 4par. 8, 2-''1s -=))@(T dated (ovember B, AA7. The &--$& lawyers have preferred not to ma#e the disclosures re"uired by the 2-''. The &--$& lawyers cannot, therefore, begrudge the 2-'' for #eeping them as a party defendants. In the same vein, they cannot compel the 2-'' to be accorded the same treatment accorded to $oco. (either can this -ourt. L@$@0=$@, the -ounter )otion dated =ctober 9, AA led by the &--$& lawyers and joined in by &tty. 2araja '. Layudini for the same treatment by the 2-'' as accorded to $aul %. $oco is N@(I@N for lac# of merit. %andiganbayan later denied petitioners1 motions for reconsideration in its resolutions dated )ay 6A, A99 and %eptember /, A6. In this petition for certiorari, petitioners contend: I $ahrah>2age " of 13
The Lonorable %andiganbayan gravely abused its discretion in subjecting petitioners &--$& lawyers who indisputably acted as lawyers in serving as nomineestoc#holders, to the strict application of the law agency.
The Lonorable %andiganbayan committed grave abuse of discretion in not re"uiring that the dropping of partydefendants by the 2-'' must be based on reasonable and just grounds and with due consideration to the constitutional right of petitioners &--$& lawyers to the e"ual protection of the law.
II The Lonorable %andiganbayan committed grave abuse of discretion in not considering petitioners &--$& lawyers and )r. $oco as similarly situated and, therefore, deserving of e"ual treatment. A. There is absolutely no evidence that )r. $oco had revealed, or had underta#en to reveal, the identities of the client4s7 for whom he acted as nomineestoc#holder. 6. @ven assuming that )r. $oco had revealed, or had underta#en to reveal, the identities of the client4s7, the disclosure does not constitute a substantial distinction as would ma#e the classication reasonable under the e"ual protection clause. /. $espondent %andiganbayan sanctioned favoritism and undue preference in favor of )r. $oco and violation of the e"ual protection clause. III The Lonorable %andiganbayan committed grave abuse of discretion in not holding that, under the facts of this case, the attorneyclient privilege prohibits petitioners &--$& lawyers from revealing the identity of their client4s7 and the other information re"uested by the 2-''. A. Mnder the peculiar facts of this case, the attorneyclient privilege includes the identity of the client4s7. 6. The factual disclosures re"uired by the 2-'' are not limited to the identity of petitioners &--$& lawyers1 alleged client4s7 but extend to other privileged matters. IO
The petition at bar is atypical of the usual case where the hinge issue involves the applicability of attorneyclient privilege. It ought to be noted that petitioners were included as defendants in -ivil -ase (o. // as conspirators. Together with )r. -ojuangco, *r., they are charged with having 3. . . conspired and confederated with each other in setting up, through the use of the coconut levy funds, the nancial and corporate framewor# and structures that led to the establishment of M-2E, M(I-=), -=-=CI0@, -=-=)&$+, -I-I and more than twenty other coconut levy funded corporations, including the ac"uisition of %an )iguel -orporation shares and the institutionali!ation through presidential directives of the coconut monopoly.3 To stress, petitioners are charged with having conspired in the commission of crimes. The issue of attorneyclient privilege arose when 2-'' agreed to exclude petitioners from the complaint on condition they reveal the identity of their client. 2etitioners refused to comply and assailed the condition on the ground that to reveal the identity of their client will violate the attorneyclient privilege. It is thus necessary to resolve whether the %andiganbayan committed grave abuse of discretion when it rejected petitioners1 thesis that to reveal the identity of their client would violate the attorneyclient privilege. The attorneyclient privilege is the oldest of the privileges for condential communications #nown to the common law. 1 0or the rst time in this j urisdiction, we are as#ed to rule whether the attorneyclient privilege includes the right not to disclose the identity of client. The issue poses a trilemma for i ts resolution re"uires the delicate balancing of three opposing policy considerations. =ne overriding policy consideration is the need for courts to discover the truth for truth alone is the true touchstone of justice. 2 @"ually compelling is the need to protect the adversary system of justice where truth is best extracted by giving a client broad privilege to conde facts to his counsel. 3 %imilarly deserving of sedulous concern is the need to #eep inviolate the constitutional right against self incrimination and the right to eective counsel in criminal litigations. To bridle at center the centrifugal forces of these policy considerations, courts have f ollowed to prudential principle that the attorneyclient privilege must not be expansively construed as it is in derogation of the search for truth. 4 &ccordingly, a narrow construction has been given to the privilege and it has been consistently held that 3these competing societal interests demand that application of the privilege not exceed that which is necessary to eect the policy considerations underlying the privilege, i.e., the privilege must be upheld only in those circumstances for which it was created.13 5 $ahrah>2age # of 13
2rescinding from these premises, our initial tas# is to dene in clear stro#es the substantive content of the attorneyclient privilege within the context of the distinct issues posed by the petition at bar. ith due respect, I li#e to start by stressing the irreducible principle that the attorneyclient privilege can never be used as a shield to commit a crime or a fraud. -ommunications to an attorney having for their object the commission of a crime 3. . . parta#e the nature of a conspiracy, and it is not only lawful to divulge such communications, but under certain circumstances it might become the duty of the attorney to do so. The interests of public justice re"uire that no such shield from merited exposure shall be interposed to protect a person who ta#es counsel how he can safely commit a crime. The relation of attorney and client cannot exist for the purpose of counsel in concocting crimes.3 6 In the well chosen words of retired *ustice Quiason, a lawyer is not a gun for hire. ! I hasten to add, however, that a mere allegation that a lawyer conspired with his client to commit a crime or a fraud will not defeat the privilege. " &s early as A//, no less than the )r. *ustice -ardo!o held in (lar" v . /nited States # that: 3there are early cases apparently to the eect that a mere charge of illegality, not supported by any evidence, will set the condences free . . . Eut this conception of the privilege is without support . . . To drive the privilege away, there must be 1something to give colour to the chargeD1 there must be pria facie evidence that it has foundation in fact.3 In the petition at bar, however, the 2-'' appears to have relented on its original stance as spelled out i n its -omplaint that petitioners are coconspirators in crimes and cannot invo#e the attorneyclient privilege. The 2-'' has agreed to exclude petitioners from the -omplaint provided they reveal the identity of their client. In ne, 2-'' has conceded that petitioner are entitled to invo#e the attorneyclient privilege if they reveal their client1s identity. &ssuming then that petitioners can i nvo#e the attorneyclient privilege since the 2-'' is no longer proceeding against them as co conspirators in crimes, we should focus on the more specic issue of whether the attorneyclient privilege includes the right not to divulge the identity of a client as contended by the petitioners. &s a general rule, the attorneyclient privilege does not include the right of non disclosure of client identity. The general rule, however, admits of well etched exceptions which the %andiganbayan failed to recogni!e. The general rule and its exceptions are accurately summari!ed in In re 'rand *ury Investigation, 1$ viz : The federal forum is unanimously in accord with the general rule that the identity of a client is, with limited exceptions, not within the protective ambit of the attorneyclient privilege. %ee: In re 'rand *ury 2roceedings 42avlic#7, F9 0.6d A6F, A68 4?th -ir. A967 4en banc7D In re 'rand *ury 2roceedings 4*ones7, ?A8 0. 6d FFF, F88A 4?th -ir. A8?7D In re 'rand *ury 2roceedings 40ine7, F?A 0. 6d A, 6B 4?th -ir. A9A7D ran" v . Tolinson, /?A 0.6d
/9B 4?th -ir. AF?7, cert. denied, /96 M.%. A96, 9F %.-t. FB9, A?
[email protected] ?B 4AFF7D In re 'rand *ury itness 4%alas7, F? 0.6d /?, /FA 4th -ir. A967D In re 'rand *ury %ubpoenas Nuces Tecum 4)arger;)erenbach7, F? 0.6d /F/, /F? 4th -ir. A967D In re 'rand *ury 2roceedings 4Cawson7, F 0.6d 6A?, 6A9 4th -ir. A87. The -ircuits have embraced various 3exceptions3 to the general rule that the identity of a client is not within the protective ambit of the attorneyclient privilege. &ll such exceptions appear to be rmly grounded in the (inth -ircuit1s seminal decision in 6aird v . 7oerner , 68 0.6d F// 4th -ir. AF7. In Eaird the I$% received a letter from an attorney stating that an enclosed chec# in the amount of SA6,8F was being tendered for additional amounts due from undisclosed taxpayers. hen the I$% summoned the attorney to ascertain the identity of the delin"uent taxpayers the attorney refused identication assertion the attorneyclient privilege. The (inth -ircuit, applying -alifornia law, adjudged that the 3exception3 to the general rule as pronounced in x parte )cNonough, A8 -al. 6/, AB 2. ?FF 4AA?7 controlled: The name of the client will be considered privileged matter where the circumstances of the case are such that the name of the client is material only for the purpose of showing an ac#nowledgment of guilt on the part of such client of the very oenses on account of which the attorney was employed. Eaird, supra, 68 0.6d at F//. The identity of the Eaird taxpayer was adjudged within this exception to the general rule. The (inth -ircuit has continued to ac#nowledge this exception. & signicant exception to this principle of noncondentiality holds that such information may be privileged when the person invo#ing the privilege is able to show that a strong possibility exists that disclosure of the information would implicate the client in the very matter for which legal advice was sought in the rst case. In re 'rand *ury %ubpoenas Nuces Tecum 4)arger;)erenbach7, F? 0.6d /F/, /F? 4th -ir. A967. &ccord: /nited States v . ,odge and 8weig, ?B9 0.6d A/B8, A/?/ 4th -ir. A887D In re 'rand *ury 2roceedings 4Cawson7, F 0.6d 6A?, 6A9 4th -ir. A87D /nited States v . Sheran, F68 0.6d A9, AA 4th -ir. A97D In re 'rand *ury itness 4%alas7, F? 0.6d /?, /FA 4th -ir. A967. This exception, which can perhaps be most succinctly characteri!ed as the 3legal advice3 exception, has also been recogni!ed by other circuits. %ee: In re alsh, F6/ 0.6d B9, B? 48th -ir.7, cert. denied, BB M.%. B, AA %. -t. ?/A, FF
[email protected] $ahrah>2age 1$ of 13
6A 4A97D In re 'rand *ury Investigation 4Tinari7, F/A 0.6d A8, A 4/d -ir A97, cert. denied, BB M.%.A9/, AA %.-t. 9F8, FF
[email protected] 99 4A9A7. %ince the l egal advice exception is rmly grounded in the policy of protecting condential communications, this -ourt adopts and applies its principles herein. %ee: In re 'rand *ury %ubpoenas Nuces Tecum 4)arger;)erenbach7, supra. It should be observed, however that the legal advice exception may be defeated through a pria facieshowing that the legal representation was secured in furtherance of present or intended continuing illegality, as where the legal representation itself is part of a larger conspiracy. %ee: In re 'rand *ury %ubpoenas Necus Tecum 4)arger;)erenbach7, supra, F? 0.6d at /F? n. AD In re alsh, F6/ 0.6d B9, B? 48th -ir.7, cert. denied, BB, M.%. B, AA %.-t. ?/A, FF C.@d. 6d 6A 4A97D In re 'rand *ury Investigation 4Tinari7, F/A 0.6d A8, A 4/d -ir A97D cert. denied, BB M.%. A9/, AA %.-t. 9F, FF C.@d. 6d 99 4A9A7D In re 'rand *ury 2roceedings 4Cawson7, F 0.6d 6A?, 6A9 4th -ir. A87D Mnited %tates v. 0riedman, BB? 0.6d A8F, A9F 4th -ir. A8A7. %ee also: (lar" v . /nited States, 69 M.%. A, A?, ?/, %.-t. BF?, BF, 88, C.@d. / 4A//7D In re 'rand *ury 2roceedings 42avlic#7, F9 0.6d A6F, A696 4?th -ir. A96 4en banc 7. ¬her exception to the general rule that the identity of a client is not privileged arises where disclosure of the identity would be tantamount to disclosing an otherwise protected condential communication. In Eaird, supra, the (inth -ircuit observed: If the identication of the client conveys information which ordinarily would be conceded to be part of the usual privileged communication between attorney and client, then the privilege should extend to such identication in the absence of another factors. Id., 68 0.6d at F/6. -iting Eaird, the 0ourth -ircuit promulgated the following exception:
To the general rule is an exception, rmly embedded as the rule itself. The privilege may be recogni!ed where so much of the actual communication has already been disclosed that identication of the client amounts to disclosure of a condential communication. 53R6 v . ,arvey , /B 0.6d , ? 4Bth -ir. AF?7. &ccord: /nited States v . Tratner , ?AA 0.6d 6B9, 6?6 48th -ir. A8?7D (olton v . /nited States, /F 0.6d F//, F/8 46d -ir. AF67, cert. denied, /8A M.%. ?A, 9/ %.-t. ??,
[email protected] B AF/7D Tillotson v . 6oughner , /? 0.6d FF/, FFF 48th -ir. AF?7D /nited States
v . *ape , ABB 0.6d 889, 89/ 46d -ir. ABB7. %ee also: (hirac v . Reinec"er , 6B M.%. 4AA heat7 69, F C.@d. B8B 4A96F7. The %eventh -ircuit has added to the ,arvey exception the following emphasi!ed caveat:
The privilege may be recogni!ed where so much of the actual communication has already been disclosed G not necessarily by the attorney$ but by independent sources as well H that identication of the client 9or of fees paidH amounts to disclosure of a condential communication. Mnited States vs. 2e:ers, ?/6 0.6d AAA, AAA? 48th -ir. A8F 4emphasis added7. The Third -ircuit, applying this exception, has emphasi!ed that it is the lin# between the client and the counication, rather than the lin# between the client and the possibility of potential criminal prosecution, which serves to bring the client1s identity within the protective ambit of the attorneyclient privilege. %ee: In re 'rand *ury @mpanelled 0ebruary AB, A89 4)ar#owit!7, F/ 0.6d BF, B8/ n. B 4/d -ir. A87. Ci#e the 3legal advice3 exception, this exception is also rmly rooted in principles of condentiality. ¬her exception, articulated in the 0ifth -ircuit1s en banc decision of In re 'rand *ury 2roceedings 42avlic#7, F9 0.6d A6F 4?th -ir. A96 4en banc7, is recogni!ed when disclosure of the identity of the client would provide the 3last lin#3 of evidence: e have long recogni!ed the general rule that matters involving the payment of fees and the identity of clients are not generally privileged. In re 'rand *ury 2roceedings, 4Mnited %tates v. *ones7, ?A8 0.6d FFF 4?th -ir. A8?7D see cases collected id. at F8 n. 6. There we also recogni!ed, however, a limited and narrow exception to the general rule, one that obtains when the disclosure of the client1s identity by his attorney would have supplied the last lin# in an existing chain of incriminating evidence li#ely to lead to the client1s indictment. I join the majority in holding that the %andiganbayan committed grave abuse of discretion when it misdelineated the metes and bounds of the attorneyclient privilege by failing to recogni!e the exceptions discussed above. Ee that as it may, I part ways with the majority when it ruled that petitioners need not prove they fall within the exceptions to the general rule. I respectfully submit that the attorneyclient privilege is not a magic mantra whose invocation will ipso facto and ipso &ure drape he who invo#es it with its protection. 2lainly put, it is not $ahrah>2age 11 of 13
enough to assert the privilege. 11 The person claiming the privilege or its exceptions has the obligation to present the underlying facts demonstrating the existence of the privilege. 12 hen these facts can be presented only by revealing the very information sought to be protected by the privilege, the procedure is for the lawyer to move for an inspection of the evidence in an in camera hearing. 13 The hearing can even be in camera and ex-parte. Thus, it has been held that 3a wellrecogni!ed means for an attorney to demonstrate the existence of an exception to the general rule, while simultaneously preserving condentiality of the identity of his client, is to move the court for an in cameraex-parte hearing. 14 ithout the proofs adduced in these in camera hearings, the -ourt has no factual basis to determine whether petitioners fall within any of the exceptions to the general rule. In the case at bar, it cannot be gainsaid that petitioners have not adduced evidence that they fall within any of the above mentioned exceptions for as aforestated, the %andiganbayan did not recogni!e the exceptions, hence, the order compelling them to reveal the identity of their client. In ruling that petitioners need not further establish the factual basis of their claim that they fall within the exceptions to the general rule, the majority held: The circumstances involving the engagement of lawyers in the case at bench therefore clearly reveal that the instant case falls under at least two exceptions to the general rule. 0irst, disclosure of the alleged client1s name would lead to establish said client1s connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance 4without which there would be no attorneyclient relationship7. 0urthermore, under the third main exception, revelation of the client1s name would obviously provide the necessary lin# for the prosecution to build its case, where none otherwise exists. It is the lin#, in the word of Eaird, 3that would inevitably form the chain of testimony necessary to convict the 4client7 of a . . . crime. I respectfully submit that the rst and third exceptions relied upon by the majority are not selfexecutory but need factual basis for their successful invocation. The rst exception as cited by the majority is 3. . . where a strong probability exists that revealing the clients1 name would implicate that client in the very activity for which he sought the lawyer1s advice.3 It seems to me evident that 3the very activity for which he sought the lawyer1s advice3 is a "uestion of fact which must rst be established before there can be any ruling that the exception can be invo#ed. The majority cites x *arte nzor , 15 and / S v . ,odge and 8weig , 16 but these cases leave no doubt that the 3very activity3 for which the client sought the advice of counsel was properly proved. In both cases, the 3very activity3 of the clients reveal they sought advice on their criminal activities. Thus, in @n!or, the
majority opinion states that the 3unidentied client, an election ocial, informed his attorney in condence that he had been oered a bribe to violate election laws or that he had accepted a bribe to that end.3 1! In Lodge, the 3very activity3 of the clients deals with illegal importation of drugs. In the case at bar, there is no in#ling whatsoever about the 3very activity3 for which the clients of petitioners sought their professional advice as lawyers. There is nothing in the records that petitioners were consulted on the 3criminal activities3 of their client. The complaint did allege that petitioners and their client conspired to commit crimes but allegations are not evidence. %o it is with the third exception which as related by the majority is 3where the government1s lawyers have no case against an attorney1s client unless, by revealing the client1s name, the said name would furnish the only lin# that would form the chain of testimony necessary to convict an individual of a crime.3 1" &gain, the rhetorical "uestions that answer themselves are: 4A7 how can we determine that 2-'' has 3no case3 against petitioners without presentation of evidence< and 467 how can we determine that the name of the client is the only lin# without presentation of evidence as to the other lin#s< The case of 6aird vs. 7oerner 1# does not support the 3no need for evidence3 ruling of the majority. In Eaird, as related by the majority itself, 3a lawyer was consulted by the accountants and the lawyer of certain undisclosed taxpayers regarding steps to be ta#en to place the undisclosed taxpayers in a favorable position in case criminal charges were brought against them by the M% Internal $evenue %ervice 4I$%7. It appeared that the taxpayers1 returns of previous years were probably incorrect and the taxes understated. 2$ =nce more, it is clear that the Eaird court was informed of the activity of the client for which the lawyer was consulted and the activity involved probable violation of the tax laws. Thus, the -ourt held: The facts of the instant case bring it s"uarely within that exception to the general rule. Lere money was received by the government, paid by persons who thereby admitted they had not paid a sucient amount in income taxes some one or more years in the past. The names of the clients are useful to the government for but one purpose K to ascertain which taxpayers thin# they were delin"uent, so that it may chec# the records for that one year or several years. The voluntary nature of the payment indicates a belief by the taxpayers that more tax or interest or penalties are due than the sum previously paid, if any. It indicates a feeling of guilt for nonpayment of taxes, though whether it is criminal guilt is undisclosed. Eut it may well be the lin# that could form the chain of testimony necessary to convict an individual of a federal crime. -ertainly the payment and the feeling of guilt are the reasons the attorney here involved was employed K to advise his clients what, under the circumstances, should be done. $ahrah>2age 12 of 13
In ne, the factual basis for the ruling in Eaird was properly established by the parties. In the case at bar, there is no evidence about the subject matter of the consultation made by petitioners1 client. &gain, the records do not show that the subject matter is criminal in character except for the raw allegations in the -omplaint. Pet, this is the unstated predicate of the majority ruling that revealing the identity of the client 3. . . would furnish the only lin# that would form the chain of testimony necessary to convict an individual of a crime.3 The silent implication is unattering and unfair to petitioners who are mar"uee names in the legal profession and unjust to their undisclosed client.
0inally, it ought to be obvious that petitioners1 right to claim the attorneyclient privilege is resolutory of the -omplaint against them, and hence should be decided ahead and independently of their claim to e"ual protection of the law. 2ursuant to the r ule in legal hermeneutics that courts should not decide constitutional issues unless unavoidable, I also respectfully submit that there is no immediate necessity to resolve petitioners1 claim to e"ual protection of the law at this stage of the proceedings. I( OI@ L@$@=0, I respectfully register a "ualied dissent from the majority opinion.
$ahrah>2age 13 of 13
